In the wake of outrage over a Boulder judge's decision to keep a convicted rapist out of prison, some in the criminal justice system are questioning whether Colorado's indeterminate sentencing law makes judges hesitant to send sex offenders to prison because of the possibility they'll never be released.

Boulder District Judge Patrick Butler on Wednesday sentenced Austin James Wilkerson, 22, to two years of jail work-release and 20 years to life on probation. He must also register as a sex offender.

Wilkerson was convicted earlier this year of sexual assault on a helpless victim and misdemeanor unlawful sexual contact for raping a female student after she had too much to drink at a 2014 St. Patrick's Day party.

The sexual assault count, a Class 3 felony, carried a possible prison sentence of four to 12 years. But it also is one of a handful of crimes that fall under Colorado's Lifetime Supervision Act, a law passed in 1998 that requires people who commit certain sex crimes — ranging from sex assault to Internet exploitation of a child — to complete treatment and apply for parole before being released from prison.

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The law was designed to encourage mid- to high-level sex offenders to get treatment in prison.

But it's had another effect: Any prison sentence for some sex offenders is now essentially a life sentence with the possibility of parole.

At Wednesday's hearing, Butler cited the law as he grappled with whether to issue the prison sentence the victim and prosecutors wanted for Wilkerson.

"I've struggled, to be quite frank, with the idea of, 'Do I put him in prison?'" Butler said. "I don't know that there is any great result for anybody. Mr. Wilkerson deserves to be punished, but I think we all need to find out whether he truly can or cannot be rehabilitated."

Ultimately, Butler decided not to send Wilkerson to prison, and Boulder prosecutors believe it's not the first time a judge has made a similar decision for that reason.

"We can only speculate, but that's a logical conclusion to reach: that they feel the weight, the gravity of that kind of sentence," said Boulder Deputy District Attorney Caryn Datz, who tried the Wilkerson case. "We certainly hear from the defense attorneys that two lives would be potentially ruined if such a sentence were given, and sometimes I think we feel that does weigh on the judge."

"Of course I considered it, knowing that it's a potential life sentence for a criminal defendant," Whalen said.

When Whalen was asked — were she still a judge — if she would be more likely to give out a four- or six-year prison sentence without the indeterminate sentencing hanging over the defendant's head, she said she likely would.

"If I were still on the bench, I think yes, I would agree with that," Whalen said. "Again, you're looking at, OK, this is potentially a life sentence. That is not necessarily, I believe, what the Legislature intended when they came up with the indeterminate sentencing structure.

"But because of the lack of resources and the lack of funding, that's the reality."

But as the number of sex-offender inmates, and the costs associated with them, has risen, the resources available have not. In fact, according to the 2015 report, the number of approved treatment providers dropped by 3.3 percent and the number of evaluators has dropped by 12.9 percent.

"The number of sex offenders subject to lifetime supervision in prison and in the community is rising, which has resulted in increased caseloads for those agencies responsible for the management of sex offenders," the report reads.

It's something that Whalen said she took into account when reviewing sentencing cases.

"The Department of Corrections is woefully underfunded in terms of the treatment programs available to sex offenders," Whalen said. "The likelihood of a defendant successfully completing sex-offender treatment in prison to the point where they would be eligible for release is statistically very low."

Former Boulder District Judge Gwyneth Whalen, seen during a 2009 murder trial, acknowledges that Colorado's indeterminate sentencing law weighs on judges as they decide the fates of convicted sex offenders. (Daily Camera file photo)

According to the report, a total of 507 inmates sent to prison on indeterminate sentences have been paroled since the first inmates became eligible in 2003. In 2015, the parole board held 1,021 hearings for 798 inmates. Release was granted in only 111 of those cases, just about 11 percent of the time.

But as Datz pointed out in her argument to Butler on Wednesday, sex offenders do get paroled from prison, and at a higher rate than ever, with 115 inmates on indeterminate sentences being released on parole for the first time in 2015.

That's the highest number of inmates on indeterminate sentences released since the law went into effect, and the number of such inmates released has risen every year since 2011.

"We are seeing a trend toward release of indeterminate sex offenders and that they are actually given priority for treatment," Datz said. "In some ways, an offender would be encouraged to go through the phases of the treatment as soon as they could so they could progress quickly to the point where they could be eligible for parole."

Boulder defense attorney Jon Pineau in 2011 worked on a class-action lawsuit against the Department of Corrections for not providing the treatment the inmates needed to meet their parole requirements.

"More people were dying and committing suicide than getting out," Pineau said.

The lawsuit ultimately was dismissed, but Pineau said since then he has been encouraged at the progress the program has made.

"They still have a long way to go, but they are moving in the right direction," he said. "People are being released, and we're happy to see that treatment is being provided in the Department of Corrections.

But despite the improvements, many still see the indeterminate sentence as putting judges sentencing sex offenders in a tricky position.

"Sentencing is, in my view, the hardest part of being a judge, and, of course, the law requires the judge consider not just punishment, but also deterrence and rehabilitation," Whalen said. "While in these cases, and understandably, there would be often an appeal on behalf of the victims for the maximum punishment, the judge has to consider a wide variety of factors, and the indeterminate sentence structure for sex offenders is also something that the judge is required to consider."

Added Boulder defense attorney Ben Collett: "The options are basically dichotomous for the judge. It's either probation or a life sentence. In a typical post-trial setting, what will happen is we'll advise our clients not to say anything to anyone for fear of jeopardizing an appeal. The calculus becomes much trickier when the judge has that dichotomous decision to make."

"I assume that on a sex case, if my client is going to prison, they are going to prison for the rest of their life."

Punishment, rehabilitation and deterrence

There have been cases in Colorado where judges have directly cited the indeterminate sentencing law as their reason for levying a prison sentence.

"As a defense attorney, you have to advise your client that they are looking at life in prison if they go to trial," Collett said. "The risk of an indeterminate sentence is so huge I think that it impacts people's right to a trial."

Daniel Ryerson, a former Air Force cadet, is handcuffed and led from a Boulder courtroom in January after being sentenced to six months in jail and 10 years to life on probation for raping a fellow cadet at a party in Boulder. The judge in that case chose not to send Ryerson to prison. (Paul Aiken / Staff Photographer)

But Pineau said he believes some clients are more inclined to take their case to trial in the hopes of a full acquittal rather than face a lifetime of sex-offender probation, which likely would come with a plea deal.

"If you have anybody who has any hope to do something other than live under a bridge, taking a plea will negatively alter their life in a way that they will never recover from," Pineau said. "I think (Wilkerson's) sentencing, in my mind, is entirely reasonable if you factor in all the consequences of probation.

"If there are people that want (Wilkerson's) life to be ruined, that is accomplished by Judge Butler's sentence."

"I've had cases in which a defendant has said, 'I'd rather take a prison sentence, SOISP would be too hard for me,'" Whalen said. "When people hear 'treatment,' they think it's easy. But it's not."

While many people can wind up focusing on the punishment aspect of a sentence, Whalen said it's important to remember the rehabilitation factor, because most inmates eventually find their way back into the community.

And if they have not been treated, that's where the community is put at risk.

"Unless the sentence is basically mandatory life without parole, there is the possibility the defendant is released back into our community," Whalen said. "At that point, I've got kids, and I'm thinking, 'OK, now we've got a sexually violent predator or someone who is not being supervised: Are my kids at risk?

"I sure hope this person received the treatment this person needs so the risk has been rehabilitated.'"

'It was disappointing, but it was not surprising'

Given all the things judges have to factor into their decisions, and the recent history in Colorado, Datz said she wasn't shocked Wilkerson did not receive a prison sentence.

"It was disappointing, but it was not surprising," Datz said. "This case is like several others we've had in this jurisdiction."

In her appeal to Butler for prison time on Wednesday, Datz talked about how one of the hardest parts of her job is telling survivors the things they will need to endure to take a rape case to trial.

And now, Datz said the conversation gets even harder when rapists don't get the sentences their victims want.

"The crime of sexual assault takes control away from a victim, and we do anything we can to give them a semblance of control back, and I can't do that without being 100 percent honest about what a trial could look like and that includes sentencing," Datz said. "We could go through trial, get a conviction and he could walk away with a community-based sentence."

But as Deputy District Attorney Lisa Saccomano pointed out, a community-based sentence is an option for many sex crimes under Colorado law.

"The judge imposed a sentence that is provided by law," said Saccomano, who tried the Wilkerson case with Datz. "It's a legal sentence. It's important for those in the community who would believe that this was an unjust sentence, if they truly believe that, for a case like this, a probation sentence is unjust, then the proper recourse would be to approach their legislator and discuss with them changes that they feel would be appropriate.

"At the end of the day, we all have to play our part in terms of seeing the change."

But as the law stands today, Whalen said judges in Colorado will continue to factor indeterminate sentencing into whether or not prison is the right decision, and community-based sentences will continue to be an option for judges afraid of sending people to prison for life.

"I don't know the specifics of this case, I only know what I read in the papers," Whalen said. "But when I read the story this morning about this particular sentence, I understood the rationale for the sentence, and I think that it was a tough decision for the judge.

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